Judges takes away school choice

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RALEIGH — For many years, state education and political leaders promised increasing our “investment” in public schools was the key to raising student achievement for disadvantaged students. And invest we did, increasing inflation-adjusted per pupil spending by nearly 25 percent in the last 20 years alone.

Yet, two decades later, disadvantaged children in North Carolina public schools continue to struggle. Last year, only 28 percent of low-income students in grades third to eighth were proficient in math. Around 29 percent were proficient in reading. That means that about seven out of 10 students in public elementary and middle schools are not proficient in math and reading as measured by state standardized tests.

Acknowledging that the “throw money at the problem” approach was a failure, Republican leaders in the N.C. General Assembly decided to change course. In 2013, legislators championed a research-based approach to raising student performance — a private school voucher program for families who do not have the means to provide educational options for their children.

The program was new, but the idea wasn’t. Even when Democrats were in charge of state government, North Carolina had long relied on private and religious institutions to provide schooling and educational services for toddlers, college students, and those in between. State agencies continue to direct taxpayer money to private (often sectarian) preschools, universities, and facilities for special-needs children. Faith-based organizations, churches, and private entities annually receive millions in grant money to provide educational services for at-risk elementary and secondary school students, among others.

The state legislature passed the law authorizing the Opportunity Scholarship Program in 2013. It was a relatively small, $10 million school choice initiative designed to provide private school vouchers of up to $4,200 to approximately 2,000 children from low-income families as measured by federal free and reduced-price lunch eligibility.

The N.C. State Education Assistance Authority, which administers the program, had received over 5,000 applications for the 2,000 or so vouchers available. The agency conducted a lottery to select the fortunate few who would receive funding, that is, until the courts stepped in.

Although it was only a fraction of the state’s $20 billion budget, the voucher program attracted opponents with deep pockets and nothing to lose. Indeed, voucher opponents could no longer rely on Democratic majorities in the legislature to bolster the district school monopoly. North Carolina voters handed Republicans majorities in both chambers of the General Assembly in 2010 and elected a Republican governor in 2012. As a result, a coalition of public school advocacy groups, led by the N.C. Association of Educators and N.C. School Boards Association, turned to the courts, hoping to find sympathetic judges who would impede laws passed by their ideological and political foes.

And they largely succeeded.

In February, Superior Court Judge Robert Hobgood issued an injunction that halted the Opportunity Scholarship Program. Essentially, Hobgood argued that because the 1971 state constitution did not include an unconstitutional voucher provision, all subsequent voucher programs must be unconstitutional, too.

The N.C. Court of Appeals refused to lift Judge Hobgood’s injunction, but the state Supreme Court eventually did. He subsequently denied a motion filed by voucher opponents to halt (again) distribution of vouchers for the coming school year. But he did so out of deference to his judicial superiors and not necessarily because of the merits of the defendants’ arguments.

The popularity of the Opportunity Scholarship Program, along with the belief that the program was safe for at least the coming school year, prompted legislators to add $840,000 in funding for students to attend a private school starting in the 2015 spring semester.

The case went to trial. Hobgood heard arguments on Tuesday. Just 48 hours later, he halted North Carolina’s Opportunity Scholarship Program just days before 2,000 low-income children were preparing to begin the school year at one of the 300 private schools participating in the program.

Judge Hobgood outlined seven constitutional objections to the Opportunity Scholarship Program. Chief among them was his opinion that the program does not serve a public purpose and uses taxpayer funds for an unequal, discriminatory, and supposedly unaccountable system of schools.

The evidence suggests that the opposite is true. For example, a 2014 study published in The Education Forum concluded that religious schools do no worse than public schools at teaching civic values. Moreover, there is no greater accountability mechanism, standardized testing included, than parents’ choice to spend or not spend tuition dollars at a school.

But Hobgood’s various constitutional objections were overshadowed by his obvious contempt for private schools generally.

Hobgood insisted that private schools are “unaccountable” and participating schools guilty of “siphoning” money from public schools. He continued, “The General Assembly fails the children of North Carolina when they are sent with public taxpayer money to private schools that have no legal obligation to teach them anything.” Hobgood declared that private schools “have no standards and curriculum,” do not require teacher and administrator certification, or mandate accreditation. Obviously, if having state standards, certified staff, and accreditation were the key to educational excellence, then North Carolina would have world-class public schools and there would be no need for school choice.

At this point, the State Education Assistance Authority released an unspecified amount of Opportunity Scholarship funds to participating private schools, and it is not clear what happens next. Hobgood suggested that the Attorney General’s office attempt to recover funds already transferred to the private schools.

Judge Hobgood concluded that a private school voucher program for disadvantaged children would require passage of an amendment to the North Carolina Constitution. Curiously, this recommendation does not appear to apply to existing voucher programs for preschool and special-needs children. But before proponents of school choice pursue a constitutional amendment, Hobgood’s ruling will be appealed to the state’s Court of Appeals and possibly the N.C. Supreme Court.

As the case works its way through the court system, thousands of low-income families will find themselves, once again, without the means to send their children to the school that best meets their needs. And too many of these disadvantaged children may be forced to return to public schools where reading and math proficiency is the exception, not the rule.

Dr. Terry Stoops is director of Research and Education Studies for the John Locke Foundation.

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